Page:Federal Reporter, 1st Series, Volume 8.djvu/668

654 FEDERAL REFOBTEB. �this intention of any of the parties to change the residence ot Maud B. Mc- Kenna, and it is now, at this date, the intention of this affiant, Mr. aud Mrs. Kirkup, and the child herself, that this residence of her with Mr. and Mrs. Kirkup for the future shall continue, j^ffiaiit was linable to carry eut hls own intention to go to Louisville, Kentucky, but he and no one of the parties has ever had any other intention than that Maud B. McKeima should be a resident of Louisville." �There has, also, since the transcript was filed, been entered in the rule-day order book of this court the following appearance of Eobert McKenna, as guardian of the defendant Maud B. McKenna ; and the letters of guardianship have been filed, shpwing that he.has, since the suit ■veas commenoed, and since its removal here, been appointed guardian of the minor by the proper court in Tennessee, viz.: �"Robert McKenna, yirho ha» been appointed, by the probate court of Shelby county, guardian of the defendant Maud B. McKenna, who is a minor, brings into court here his letter ot gnardianship, and enters his appearance, as such |[uardian, in behalf of the said minor, his said ward, tp this suit. �"Wm. M. Randolph, Sol'r. �" Copied f^om Rule Docket, p. 42." �Metcalf e Walker, for the motion. �W. M. Randolph, contra. �Hammoud, D. j. The affidavit of the attprney for the petitipner shows that the omission to file the transcript on the first day of the next session of this court was an inadvertence. It was filed on the next or second day of the session, and no injury could possibly have resulted to the other parties by the failure to comply with the letter of the statute. It would be, therefore, a very harsh rule, and entirely at variance with the analogies of the practice in this state, to hold that a slip like that had defeated the jurisdiction of this court and destroyed the efficacy of this statute. I have been much perplexed by the conflict of opinion shown by the very few cases on the subject in the different circuits, and more by the very strict rulings of the supreme court in the construction of the somewhat analogous statutes regulating the jurisdiction of that tribunal on writs of error and appeal. The principle involved depends upon a solution of the ques- tion, whether the statute is directory or imperative, and this is always a question of delicacy and the utmost difficulty; particularly so, since there is well-grounded complaint that the courts are too ready on one pretext or another to dispense with the command of the legis- lature by an application of this rule.of construction. I fully agree with all that the supreme court of Mississippi said on this subject in ��� �